Heppell v The Law Society of the Northern Provinces

The appellant, Warrick Lesley Visser Heppell, was admitted as an attorney on 7 May 1991. He ceased practice on 30 May 2007 to pursue business ventures (close corporation, liquor trade, property development) and signed suretyships for business debts. Due to economic difficulties, he sold his business assets at a loss and resumed practice as an attorney from 1 September 2010. Unable to meet his financial obligations, he applied for voluntary surrender of his estate, which was granted on 11 January 2012. The Law Society of the Northern Provinces initiated an investigation into his fitness to practice following his sequestration. An initial report by Ms Geringer found no issues with his trust account and no complaints against him, concluding he remained fit and proper to practice. However, the Investigative Committee found he had failed to disclose material facts in his voluntary surrender application: he did not disclose he was a practicing attorney; misrepresented his liabilities as R146,000 when suretyships totaling R20 million should have been included; failed to fully disclose his income and expenditure from his practice; and failed to properly disclose his matrimonial regime. The appellant blamed his attorney for these omissions, claiming he signed the affidavit without properly checking it.

• Whether the appellant was a fit and proper person to continue practicing as an attorney notwithstanding his sequestration in terms of section 22(1)(e) of the Attorneys Act 53 of 1979
• Whether the appellant's failure to make full and proper disclosure in his voluntary surrender application constituted unprofessional, dishonourable or unworthy conduct
• Whether suspension from practice was an appropriate sanction in the circumstances
• Whether there were grounds for this Court to interfere with the exercise of discretion by the court a quo

The appeal was dismissed with costs on the attorney and client scale. The six-month suspension from practice imposed by the Gauteng Division of the High Court, Pretoria was upheld.

An attorney who fails to make full and proper disclosure of material facts to a court in an ex parte application for voluntary surrender of his estate (including failure to disclose his status as a practicing attorney, substantial suretyships amounting to R20 million, and accurate details of income and expenditure) cannot be regarded as a fit and proper person to practice as an attorney without sanction. The duty of uberrima fides owed by attorneys extends not only to clients but to courts, and an attorney who signs an affidavit confirming its truthfulness cannot escape liability by claiming reliance on the attorney who drafted it or failure to properly read it. Under section 22(1)(e) of the Attorneys Act 53 of 1979, a sequestrated attorney bears the onus of satisfying the court that despite sequestration he or she is still a fit and proper person to continue to practice. An appellate court will not interfere with a trial court's exercise of discretion in imposing a sanction (striking off or suspension) unless the discretion was exercised capriciously, on a wrong principle, or as a result of material misdirection.

Majiedt JA observed (obiter) that while the main consideration in imposing a sanction should be the protection of the public rather than punishment of the attorney, the high court had adopted a regrettably narrow approach focusing primarily on penalizing the appellant. Majiedt JA noted that a suspended suspension on appropriate conditions for a lengthy period (e.g., three years on condition that the appellant not be found to have failed to make material disclosure) might have been a more appropriate sanction that would have served both to protect the public and to penalize the appellant. However, this did not warrant interference on appeal. Majiedt JA reiterated the principle from Law Society of the Cape of Good Hope v Budricks that a striking-off order or suspension should be suspended only if the court finds the attorney is a fit and proper person to continue to practice but still wishes to penalize him. The court emphasized that the period of suspension provides an opportunity for the appellant to reconsider his unprofessional conduct and rehabilitate himself, and it is hoped he will return to practice as a better attorney, more attuned to his duty to the public and the court.

This case reinforces important principles regarding the duties of attorneys and the disciplinary powers of courts in South Africa. It emphasizes that attorneys owe a duty of uberrima fides (utmost good faith) not only to clients but to courts, particularly in ex parte applications requiring full disclosure. The judgment confirms that section 22(1)(e) of the Attorneys Act 53 of 1979 places the onus on a sequestrated attorney to satisfy the court that despite sequestration they remain fit and proper to practice. The case reiterates the three-stage enquiry for attorney discipline matters and the limited circumstances in which an appellate court will interfere with a trial court's exercise of discretion in imposing sanctions. Majiedt JA's concurring judgment provides valuable guidance on the proper approach to sanctions in disciplinary matters, emphasizing that the primary consideration must be protection of the public rather than punishment of the attorney, and noting that a suspended suspension on appropriate conditions may be a suitable sanction in appropriate cases. The case serves as a warning to attorneys about the serious consequences of failing to make full and frank disclosure to courts, particularly in matters relating to their own financial affairs.